Cheng v Government of the United States of America

For extradition purposes, the court examines the conduct alleged against the requested person, rather than the constituent elements of each offence charged in the requesting state. Where the charges arise from the same criminal enterprise, it is unnecessary to establish a precise English-law correlation for every individual offence. The extradition judge may send the whole request to the Secretary of State where the alleged conduct constitutes an extradition offence. The Secretary of State’s specialty assessment concerns whether the person will be tried for offences outside the request; it does not permit a review of the extradition judge’s decision to send the case.

The United States requested the appellant’s extradition to face trial in Massachusetts on ten counts concerning the alleged export of pressure transducers to Iran through misleading end-user information. The District Judge held that the alleged conduct amounted to extradition offences and sent the case to the Secretary of State. The Secretary of State subsequently made an extradition order.

The appellant appealed both decisions. He argued that the alleged conduct did not amount to conspiracy to defraud and that the Secretary of State should have required an assurance limiting prosecution to that offence. The central issues were the proper focus of the extradition-offence inquiry and the scope of the Secretary of State’s specialty function.

1. Appeals dismissed. The appeal against the District Judge’s decision and the appeal against the Secretary of State’s extradition order were both dismissed.
2. Under section 137 of the Extradition Act 2003, the relevant inquiry concerns the conduct alleged against the requested person. The court does not instead analyse the constituent elements of each offence charged under the law of the requesting state. This approach follows Norris v United States of America [2008] 1 AC 920.
3. The affidavit alleged that the appellant participated in deliberately misleading the exporting company and United States Customs authorities about the true end user of the goods. That conduct supported an inference of dishonesty and could amount to conspiracy to defraud.
4. Because all the counts arose from the same criminal enterprise, namely the conspiracy to export the goods, it was unnecessary to test whether each individual offence had a precise correlation with an English offence. The case was closely analogous to Tappin v Government of the United States of America [2012] EWHC 22 (Admin).
5. The District Judge had sent the case to the Secretary of State in respect of all the charges in the extradition request. The Secretary of State’s task was to be satisfied that specialty would be observed and that the appellant would not be tried for offences other than those referred to in the request. She was not required to review the District Judge’s decision to send the entirety of the request.

The judgment states that the appellant appealed to the Divisional Court against both the District Judge’s decision to send the case to the Secretary of State and the Secretary of State’s extradition order. Both appeals were dismissed.